In Allen, et al. v. City of Chicago, Case No. 10-C-3183 (N.D. Ill. Dec. 10, 2015), Chicago police officers working with the Bureau of Organized Crime (“BOC”) filed a Fair Labor Standards Act (“FLSA”) collective action lawsuit over five years ago claiming that they were not paid overtime for their off-duty use of work-issued BlackBerrys. After trial, the federal judge ruled in the City’s favor. Although the court found that the police officers were performing compensable overtime work on their devices while off-duty, the police officers were denied recovery because they failed to prove that there was an unwritten policy to deny them compensation for that work.
The Chicago Police Department (“CPD”) had issued two general orders regarding off-duty use of CPD-issued electronic communication devices. General Order 98-08-09, issued on October 13, 2010, stated, in relevant part, that department members “are not obligated or required to access, respond to electronic communications, and/or carry the devices on their person while off-duty,” and “[m]embers accessing their Department e-mail account, responding to electronic messages, or using a Department-issued electronic communication device related to Department business will not be compensated unless the member is officially on a `call-back’ assignment . . . or the member is directed by their superior to immediately perform a substantial task with overtime authorization from the superior directing the request” The October 2010 order was modified slightly on August 7, 2013, in General Order G09-01-05. The 2013 order emphasized that “[o]ff-duty members will not use a Department-issued electronic communication device to . . . perform other work related to Department business” unless on a call-back assignment or directed and authorized to do so by a supervisor.
Each of the plaintiffs also had to sign an agreement that they would not be compensated for work performed on their BlackBerrys while off duty, unless they were (1) on an official “call back” assignment, as defined in the CBAs; or (2) directed by their supervisor “to immediately perform a substantial task with overtime authorization from the superior directing the request.”
Despite these General Orders and agreements, the plaintiffs testified that they were required to keep their cell phones turned on and physically close by while off-duty, although a few deponents silenced their email notifications (but not telephone) during their sleep hours. The officers also testified that they felt obligated to respond to all work phone calls received off-duty on their cell phones and to review and respond to certain emails they receive while they were off-duty. Plaintiffs also felt obligated to review and respond to emails sent directly to them from their supervisors or subordinates, many of which required an immediate response, and the majority of the plaintiffs also felt obligated to review Crime Prevention and Information Center emails — mass emails reporting shootings in the Chicago area — to determine if the shootings related to one of their ongoing cases.
Under the FLSA, an employer must pay overtime to non-exempt employees for all hours worked in excess of 40 in a work week. There are some exceptions to the standard work week for certain types of workers, including police officers, but not overtime generally. Overtime includes work that is requested not only by an employer, but also work that is “suffered or permitted.” Consequently, if an employee voluntarily continues to work at the end of the work shift, the hours are compensable. This is true even if the employee was not authorized to work overtime and is subject to discipline.
While the officers testified that they were afraid to turn in overtime requests, the court noted that there was no official policy of denying overtime requests for using the devices while off duty. To the contrary, the city had a policy of requiring police officers to complete and submit overtime reports where appropriate, and dozens of other police officers had in fact submitted overtime reports for work done on their BlackBerrys, which the city approved and paid. There was no proof the supervisors knew if or when the police officers were working on their devices off duty without submitting overtime reports. There was also no proof that the supervisors had created a culture or unwritten policy discouraging the police officers from reporting any overtime work. Thus, the court held that the police officers were not entitled to overtime compensation because they failed to prove that there was an unwritten policy to deny them compensation for that work.
Takeaway: This case illustrates the potential risks associated with issuing mobile work devices to hourly and salaried non-exempt employees. If an employer is going to do so, it must have a clearly articulated policy setting out a reasonable process for employees to report overtime, including any off-duty work on mobile devices that is necessary for their job. The policy should be uniformly enforced, and employers should not attempt to discourage employees from reporting overtime.